IN THE HIGH COURT OF APPEAL
HELD AT MBABANE CIV. CASE No.413/2006
In the matter between:
ESAU M DLAMINI Plaintiff
SWAZILAND GOVERNMENT Defendant
Neutral Citation: Esau M. Dlamini vs Rex (413/06)  SZHC 124 [12th June 2018]
Coram: MAPHANGA J
Date Heard: 06/12/2017
Date Delivered: 12/06/18
Summary: Civil Law and Procedural - plaintiff bringing a delictual claim for damages in respect of patrimonial loss to motor vehicle carrying of a motor vehicle collision - defendant bringing a similar claim in reconvention albeit for a lessor amount - In the pleadings no contributory negligence pleaded hence appointment of Damages Act not in issue - Respective claims attributed to either party being sole cause of the collision - Defendant raising doctrine and sudden emergency in defence - Defendant drive overtaking - Applicable principles discussed; Held: Plaintiff’s falling short of proving defendant’s driver the sole cause of accident; Act Action dismissed.
 This is an action for delictual damages for patrimonial loss in which the Plaintiff is seeking an award in compensation to the order of E330,000.00; a sum ostensibly representing the loss occasioned to his vehicle which was involved in a collision with the defendant’s own vehicle. The Plaintiff’s vehicle, described as a mini-bus for public passenger commercial transport operation, was rendered a total loss on account of extensive irremediable damage.
 In reconvention, the defendant has also brought a counterclaim to the main action also for damages for loss of patrimony in which it is demanding compensation in the sum of E55,000.00 being the estimated loss or diminution in value to its vehicle as equated to the cost of rehabilitating or repairs to bring the same to its pre-accident condition. Each party contends the other was the cause and therefore solely responsible for the collision in an all or nothing approach. None has pleaded an alternative prayer for a finding of contributory negligence and apportionment of damages.
 The facts which are largely common cause, uncontroverted and thus not subject to dispute may be outlined as follows. The collision occurred on the 29th of August 2005 at a time estimated to have been between 17h30 and 18h00 along the Luyengo-Khalangilile public road at or near a place called kaShongwe. There is a bus stop in that vicinity along the route. It was dusk to early evening but from all accounts it seems the daylight was still good and the weather and visibility conditions were good.
 The Plaintiff’s bus was being driven by one Mr Mathokoza Dlamini in the direction from Luyengo towards Khalangilile. The defendant’s vehicle, a police service light delivery vehicle (small truck) was being driven by a certain Inspector Sihlongonyane in the same direction as the Plaintiff’s bus. From all accounts it would appear the roadway on which the collision occurred is a provincial (country) road of a paved asphalt or tarmac surface standard with a single lane for traffic going in the opposite directions, separated by a demarcation white line. It is common cause that the collision occurred at a point along the route where there is an access road to the right hand side when driving in the direction from Luyengo (the path followed by the vehicles in question).
 In all the evidence the court has had to rely on oral testimony as regards the specific but vital data which is commonly used as a reference point in such cases. One must decry the lost opportunity occasioned by the failure of both sides during the pre-trial preparation to compile and prepare the standard documentary or forensic evidence which invariably aids the court in considering such cases and the incidence of fault as it is required to do.
 Thus there was neither a Police Report giving a narrative of the abstracted evidence, nor a sketch plan or photographic evidence compiled in the run up to this case. None was forthcoming or adduced at the trial either although some reference was made in an allusion by the investigating officer and in the Plaintiff’s discovery affidavit as to its existence. It is thus perplexing that such vital primary evidence was not adduced at all.
 The pre-trial preparation for this matter falls far short of the requirements of our rules it is thus surprising how the matter got enrolled in the first place.
Having said that the matter turns on one issue; on whom the liability for causing the collision falls. Whether the accident was due to the negligence of the driver of Defendant’s or Plaintiff’s vehicles respectively. In other words causative fault.
 The critical facts concern the circumstances about the collision and impact – the circumstances surrounding the collision and the factors relevant to that event. A key and material feature which is also common cause is that the collision occurred whilst the Plaintiff’s vehicle was in the process of executing a turn to the right across the roadway in order to exit onto a side road. Other than that there was some controversy although in a narrow factual field concerning data about the road markings and signage which emerged during the evidence.
THE PLAINTIFF’S CASE
 Firstly the Plaintiff led evidence to establish ownership and the pre-accident value of the mini bus. I must say no documentary evidence was produced in these respects by the Plaintiff during his testimony but I must take it that as ownership was not challenged by the Defendant no issue was taken and thus the evidence was not in dispute. The same cannot however be said about his evidence as to the pre-accident value of the vehicle as it turns out he estimated the sum claimed based on the purchase price he paid when acquiring the vehicle in 2002; some period of four years before the collision. He was challenged by Mr Vilakati as to the sums claimed as an estimate of the replacement value on account of normal depreciation due to wear and tear. He conceded that he had not ascertained the value of the vehicle at the time of the accident. I imagine such evidence especially as to the pre-accident value of the vehicle would be readily ascertainable by way of industrial motor vehicle (book) value estimates in the market.
 The Plaintiff was also keen to present a face of the motor vehicle having been in a good and serviceable (roadworthy) condition at the time of the collision although upon cross examination his evidence in this regard was challenged by the defendant. Ultimately this aspect of his testimony was detracted by a concession in cross examination that actually he did not know the pre-accident condition of the bus at that time. In all I was not impressed by his evidence on the question of the serviceability of the vehicle and as to proof of the sums claimed.
 An important singular element in the Plaintiff’s testimony was a concession when it was put to him that at the time of the accident the vehicle that was involved in the collision was being escorted and followed by another passenger service (bus) vehicle of his.
 The Plaintiff also called his driver, the said Mathokoza Dlamini whose account of the events was that he recalls the time of the accident to have been around 18h00 and that the road was tarred with standard navigational and warning signs. He stated that he recalled that upon approaching the area of the accident from the Luyengo direction he noticed that there was a 60kph speed regulatory sign warning motorists travelling in that direction to reduce speed at that point.
 He says he accordingly brought the velocity of his vehicle to that speed. He also testified that separating his and the opposite driving lane was a solid or continuous barrier line prohibiting vehicles from overtaking. There was an incline towards the Lusushwana river and a bridge over it. He had to turn off onto a side road in order to pick up a passenger from a homestead in the area. I find this reference to the mission behind Plaintiff’s vehicle turning off onto a homestead to uplift a passenger a remarkable revelation given that during the evidence it emerged that there was a bus stop in the vicinity. It begs the question as to why the passenger would not wait at a conventional bus station.
 All said the Plaintiff’s driver further testified that as he was approaching his turn off he started indicating his intention to turn to the side road onto which he was to exit by switching his indicator signal lights and was in the process of branching off a side road when his vehicle was struck by the defendant’s motor vehicle. He asserted further that the defendant’s motor vehicle was travelling at a high speed. Upon collision the impact was located at the right hand rear of the bus towards the rear wheel. It was of such magnitude of force that the bus was dislodged and overturned off the road hitting an embankment.
 The Plaintiff’s driver also gave evidence to the effect that ahead of the area of the collision was a descent approach towards a stop sign and a single-lane bridge sign waring that the bridge in question was a single lane bridge. No indication was given as to the relative distance between the point of the collision and the bridge or the stop sign. Without this evidence I was not impressed as to the relative significance or materiality or relevance of this aspect of the Plaintiff’s driver’s evidence in this regard. Nowhere is it suggested that the vehicles were proximate to the bridge in question. I must say that it emerged from Mr Mathokoza but only during cross examination that upon approaching the accident scene, he was being followed by at least two other vehicle which he described as a a sedan and another mini bus in that order. He conceded that the second mini-bus also belonged to the Plaintiff although he refuted that it was escorting his vehicle and that it had hazards warning lights on. It is notable that he did not volunteer such key evidence in chief. I shall return to this feature of the evidence further in this judgment.
 The Police Officer who investigated the accident scene was called as a third witness by the Plaintiff. His name is Inspector Abner Dlamini a retired officer who was a road traffic officer at the time. In summary his evidence is that in the day in question he received a call to attend a road traffic accident on the Luyengo-Khalangilile road. He inspected the scene and found both vehicles in the post-collision positions with extensive damage. He proceeded to interview the drivers and another driver whereupon he took statements from them and prepared a sketch plan of the accident scene. He stated that he also conducted further investigations in order to determine the cause of the accident and it was during that process that he concluded that the Plaintiff’s vehicle was being driven in, as he says, ‘an unroadworthy condition’ and was in the process of being escorted by a second mini bus also belonging to the Plaintiff driven by one Gabheni Dlamini when the collision occurred. Incidentally this Gabheni Dlamini was the third person interviewed by Inspector Dlamini and from whom he recorded a written statement.
 I must say that none of these statements were placed before court and the said Gabheni Dlamini was not called as a witness to give his account. I must also reiterate my concern at the serious paucity in the evidence placed before this court which I find remarkable. Despite reference to specific data and observations alluded to by Inspector Dlamini it is notable that no sketch plan and police report was placed before the court in evidence. We only have the police officer’s account which breaks with the conventional way of such evidence of road traffic reports regard being had to the critical nature of forensic information and data as a vital aspect of such evidence.
 Nonetheless it was this crucial plaintiff’s witness’ evidence that in his findings he discovered that the Plaintiff’s vehicle lights were defective and that the vehicle was therefore not roadworthy. He also concluded that at the time of the accident the said vehicle was being escorted by another mini bus which was providing hazard warning signals from the rear guard.
 During the evidence there was a critical field of evidence regarding the regularity road traffic signs in the area of the collision. This bears on two key features including;
- whether the median (centre) line demarcating the lanes was a solid line (thus prohibiting overtaking) or broken thus permitting vehicles to pas each other; and
- whether there was a sign regulating speed at the vicinity or approaches to the accident scene.
 The investigating officer could only assert that at the area there was a speed regulating sign indicating the permissible maximum speed to be 60 km per hour. That was not controverted or placed in dispute by the defendant. In sum two key aspects in Inspector Dlamini’s testimony may be noted. He concluded that:
- the given the faulty condition of his vehicle the Plaintiff’s driver had failed to take due care and diligence in taking precautions before turning his vehicle and by failing to warn approaching traffic clearly and timeously of his intention to turn off; or ensuring that it was safe to do so before he turned his vehicle; and
- that in his observations due to the presence of skid marks on the tarmac at the scene and the extensive impact damage on both vehicles he concluded that the defendant’s vehicle had been travelling at excessive speed beyond the mandatory maximum speed prescribed.
THE DEFENDANT’S CASE
 The driver of the defendant’s vehicle led evidence in favour of the defendant. He is a Police Inspector Nhlanhla Sihlongonyane. His testimony is that he had been travelling along the Luyengo- Khalangilile public road. Ahead of him as he approached the kaShongwe area from the Luyengo direction he noticed two vehicles which at first sight were about a kilometre ahead. He was able to close in on these vehicles and noticed that they were two mini buses closely following each other. He eventually caught up with these vehicles and it is at that point when he noticed that the rear vehicle had its rear warning “hazard” signal lights on (flashing) which seemed to signify that it was a support vehicle escorting the leading mini bus. It appears he assumed from this that he leading advance vehicle was defective and at that time upon pulling up to these vehicles he decided to overtake them.
 In order to pass the column of buses he states that he accelerated, indicated his intention to move up to the opposite lane in an overtaking motion and proceeded to execute the overtaking process. He estimates his speed at that point to have reached about 80km per hour. At that juncture as he pulled up the mini-bus in front suddenly, and without any warning, swerved to turn onto a side road on the right of the roadway. In an attempt to avert a collision he states that his reaction was to apply his brakes hard but despite this action his vehicle failed to stop and collided with the turning bus with such force that the bus capsized.
 During cross examination Inspector Sihlongonyane conceded that he had to apply his brakes abruptly but was firm in that this was due to the emergency arising out of the sudden swerve of the Plaintiff’s Iveco bus as that vehicle in turning had bounded across the roadway; as a result the defendant’s vehicle brakes locked and the vehicle went into a planning or skidding mode before hitting the Plaintiff’s bus –thus he could not avoid the collision. He however refuted a suggestion put to him in cross-examination that there was either a stop sign immediately ahead of the vehicles or an unbroken (solid) median line on the road prohibiting overtaking.
 From the evidence it is clear how the accident happened and that the collision ensued upon the swerving of the Plaintiff’s mini bus to turn across the road way whilst at the same time the defendant’s driver was attempting an overtaking motion. It is necessary however to determine whether either driver’s faulty or negligent conduct can be attributed as the cause of the collision in the sense of the ‘but for’ test. For this reason this calls for an examination of the evidence to determine the relative conduct of drivers of the vehicles involved in determining whether they acted with the requisite standard of care and due diligence of a reasonable motorist in the circumstances.
 It is trite that he who alleges negligence bears the onus of proving it on a balance of probabilities and in deciding whether the party alleging fault has succeeded in discharging the burden, the court must have regard to the totality of the evidence which was led during the trial. See Aurthur v Bezuidenhout and Mieny 1962 (2) SA 566 (AD) at 576 (G); Sardi and Others v Standard and General Insurance Co. Ltd 1977(3) SA 776(A) at 780 C-H; Madyosi and Another v SA Eagle Insurance Co. Ltd (1990) ZASCA 65; 1990 (3) SA 442 (E) at 444 D-F.
THE DUTY OF THE APPROACHING MOTORIST
 Firstly a look at the conduct of the defendant’s driver. Klopper has postulated certain general principles as applicable to situations where an approaching motorist seeks to overtake a vehicle ahead. Implicit in these principles is the gold end rule that the motorists must keep a proper lookout for all foreseeable exigencies whilst driving. But specific to overtaking motorists this is what the learned author states:
“(e) Making provision for lateral movement
When overtaking, a driver must allow sufficient space between his/her vehicle and the vehicle being overtaken for foreseeable and normal lateral movement of the vehicle being overtaken. In order to prove negligence in a collision between an overtaking vehicle and the vehicle being overtaken, an overtaking driver must be able to show that:
- the collision was occasioned by the sudden movement to the right by the driver of the vehicle being overtaken; and
(ii) he/she had given the overtaking vehicle sufficient space to allow for foreseeable and normal lateral movement of the vehicle being overtaken.”
(my emphasis and underscore)
 To this may be added that in Mabaso v Marine & Trade Insurance 1963 (3) SA 439 (D) it was also stated that generally an overtaking motorist is entitled to assume that the slower moving vehicular traffic will keep left. This is subject to the rule that the overtaking motorist keeps a proper lookout and keeps a safe passing distance. Where the slower moving vehicle would seem to be either straying or likely to do so that the passing motorist should use his hooter. (See also Castle v Castle v Pritchard 1975 (2) SA 392 (R); Breswich v Creus 1965 (2) SA 690 (A).
 These general principles may be somewhat removed in that the situation or circumstances concerned with in the instant case is not one that presents in the typical sense of vehicular traffic travelling in the same general direction (hence reference to foreseeable lateral movement) but an extraordinary event of the vehicle being overtaking taking a sudden unforeseen movement across the path of travel of the passing vehicle. Apart from that the principle accords with the general standard of expectation as to conduct of an overtaking motorists and thus are applicable and apposite in the circumstances of this case.
 What is generally foreseeable in the ordinary scenario is that a passing motorist should and can expect that the vehicles ahead may veer to some degree towards his vehicle and thus must adjust his passing berth accordingly. Clearly this does not accommodate and would be no value as a precaution in instances of a sudden emergency involving a turning vehicle.
 It would seem almost axiomatic that a motorist seeking to turn right in the face of oncoming and following traffic undertakes a highly hazardous action which would require a greater degree of caution all in the general duty of a motorist to exercise a commensurate standard of care as warranted by the circumstances. (See AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A). Not only must such a driver signal his intention to turn to the right clearly but in Wolf v Christner 1976 (2) SA 170 NPD it was stated that:
“It is the duty of a driver who is about to execute a right –hand turn across a busy public road …..to take considerable care to ensure that he chooses a safe and opportune moment to cross. No system of signals, however helpful that system might be, can be a substitute for or replace the fundamental duty of every driver to keep a proper lookout”
 Again in Orne-Gliemann v General Accident Fire & Life Assurance Corporation 1981 (1) SA 884 (Z) the learned Beck J stated that:
“There is no dearth of authority for the proposition that, before executing a right-hand turn, a motorist is under a duty to ensure that the turn can be executed without endangering, not only oncoming traffic, but following traffic as well”
 There is no doubt that in turning his bus into the homestead the Plaintiff’s driver had to turn across the roadway in a manner that would have presented an obstruction to following and oncoming traffic. There was thus an immense duty to not only signal but to ensure that before he turned his vehicle it was both safe and opportune to do so.
 Other than what he states that he switched on his signal (which is disputed and contradicted by the Plaintiff’s own second witness as something that he would not have been able to do as the lights of the vehicle were defective) there is no indication that the driver was mindful if aware at all of the defendant’s vehicle behind him or that he was observing it in his rear view mirror prior to or even during executing the turn.
 In the absence of any indicator lights he would have had to signal by use of a hand signal to make it clear to traffic that he was turning. The evidence of Inspector Dlamini is that he did not do so. I discern for the evidence that even if his lights were functional still he would have needed to take every precaution that his intention to turn was clearly signalled especially as there was another bus following closely behind is which would have concealed his vehicle to following traffic to some extent.
WHETHER OVERTAKING WAS PERMISSIBLE
 On the facts there was no clear cogent evidence that there were prohibitory signs against overtaking at, near or approaching the area of the collision. The evidence of the investigating traffic officer was that the roadway leading off the main road was not a general public road but a driveway to some homestead adjacent to the road.
 However Plaintiff’s evidence was conflicting and contradictory in this regard when considering the drivers testimony against that of the Police officer Abner Dlamini. As indicated there was no sketch plan or police report handed in to verify this aspect of the evidence. In any event the line and its configuration would have to be placed in some context in relation to the point of impact to be relevant. Without this critical evidence it cannot be shown on a balance that such a solid line was there. I am inclined to find in the circumstances that subject to the usual standard precautions for overtaking traffic, there was nothing to prevent or prohibit the defendant’s vehicle from overtaking the vehicles ahead of him.
 Would the defendant’s driver foreseen that the plaintiff’s vehicle would make a sudden right turn across the road in the path of vehicular traffic?
The authorities are quite clear that for a motorist about to overtake other vehicles, quite apart from the general duty of care and to be on the lookout for any foreseeable eventuality, he is not required to take extraordinary precautions against all possibilities including anticipating the reckless driving of others. That principle has been reaffirmed in the case of Rondalia Versekerings Van SA Beperk v De Beer 1976 (4) SA.
 There is ample evidence to show that the defendant’s driver whilst attempting to overtake the slow-moving traffic ahead of him, was confronted with a sudden emergency. On the Plaintiff’s own evidence and in particular the testimony of the investigating officer pertaining to the condition of the plaintiff’s vehicle when seen against the owner’s unsatisfactory evidence concerning the fitness of the minibus for the purpose. I am also inclined to find on a balance of probability that the plaintiff’s motor vehicle was indeed faulty in the sense that its warning lights were not functional. That is why the vehicle in question was escorted by the second mini bus whose warning lights were flashing.
 As it was getting dark it seems very likely from the evidence that the vehicle in question required to come off the road clearly because the conditions were becoming more hazardous. I do not accept the plaintiff’s drivers, Mathokoza Dlamini’s testimony that he was turning off the road to pick up a passenger from a homestead. Normally all fare-paying passengers are picked up from designated bus stations. In any event a decision to take the vehicle off the road into a homestead was made under clearly dangerous circumstances.
 Counsel for the defendant contended that the defendant driver having been faced with a sudden emergency could not have averted the accident and that he took all reasonable steps to avoid the accident. He however appeared to concede that the said Mr Sihlongonyane was placed in a situation where he had to abruptly apply his brakes hard (excessively). We know that from this action his vehicle skidded or started planning on the road surface as evidenced by the skid marks on the road witnessed by the investigating officer.
 Mr Vilakati urged that the actions of the defendant driver no matter how errant should be excused in light of the emergency and that the approach of this court in determining fault in an emergency situation should focus on the cause of the emergent situation for purposes of liability and not the actions of the reacting driver. To this end he relied on and quoted the test postulated by the learned Els J in the case of Ntsala and Others v Mutual and Federal Insurance Co. Ltd 1996 (2) SA 184 (T) at 192 F-H as pertains to attribution of any contributory fault on the conduct of a driver reacting to an emergency in his evasive action or omissions. I shall come to the critical elements in the quoted dictum and the principle articulated therein. For a moment it may be recognised that the defendant driver in his evidence was clear and unequivocal. He stated that when he made the decision to overtake the vehicles in front of him, he had to accelerate and pick up speed. He estimates that in so doing he estimated that he estimates that his vehicle was at a point travelling at about 80km per hour. It was at that point as he attempted to pull alongside and past the vehicles that he was confronted by the plaintiff’s sudden turn to the right. Instinctively he jammed his brakes hard but alas he could not avoid a collision and consequently his vehicle come into contact with the Plaintiff’s bus and crashed into it. I imagine that in the circumstances he would have been in a catch 22 situations where swerving to the left was impossible due to the existence of the other vehicle and to the right would take him onto the plaintiff’s vehicle. In any event braking seemed the only thing he could and did do.
 In such situations of emergency the reaction of motorist called upon to respond to avert such an emergency is seen more as an error of judgment than negligent conduct; where in whatever step or action even if such may have been wrong with hindsight in the split moment of the drama, that action will be excusable unless it is such that no reasonable person would have taken it. It was put as follows in the case of Ntsala:
“Where a driver of a vehicle suddenly finds himself in a situation of imminent danger, not of his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that he is negligent unless it can be shown that no reasonable man would so have acted. It must be remembered that with a sudden confrontation of danger a driver only has a split second or a second to consider the pros and cons before he acts and surely cannot be blamed for exercising the option which resulted in a collision.”
 Again in SAR and H v Symington 1935 AD 37 Wessels CJ stated this principle as follows (at 45):
“Where men have to make up their minds how to act in a second or in a fraction of a second, one may think this cause better whilst another may prefer that. It is undoubtedly the duty of every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of judgment he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa”
 Relying on these authorities the test to be applied in such cases was reaffirmed in the case of Road Accident Fund v Grobler 2007 (6) SA 230 (SCA) as follows:
“When a person is confronted with a sudden emergency not of his own doing, it is, in my view, wrong to examine meticulously the options taken by him to avoid the accident, in the light of after-acquired knowledge, and to hold that because he took the wrong option, he was negligent.
The test is whether the conduct of the respondent fell short of what a reasonable person would have done in the same circumstances.”
 It was suggested by the Plaintiff’s counsel both in the cross examination of the Defendant’s driver and buttressed during submissions that the defendant’s driver was the sole cause of the accident inter alia on account of the excessive speed at which he was travelling at the time of the collision; speed it is common cause was beyond the 60 kph prescribed speed limit. Proceeding on the premise that the defendant's vehicle was overtaking and so doing it would have been necessary to accelerate and travel at a pace higher than the traffic being passed the question is whether the speed was a decisive factor in the causal connection of events. In other words can it be demonstrated that had the defendant’s vehicle been travelling at 60 kph at the time the emergency would not have arisen and the collision averted. I am not satisfied that is the case as I am not that the conduct of the defendant driver was unreasonable in the circumstances in both overtaking and in applying his brakes when he did.
 On the facts of this case and in light of the evidence placed before me by the Plaintiff I am not satisfied that he has proven that the accident was solely caused by the negligence of the defendant’s driver in the alleged instances or at all. For that reason it is my decision that the action must fail and is accordingly dismissed with costs.
JUDGE OF THE HIGH COURT
For the Plaintiff: Mr L. Dlamini
Lukas BKS Dlamini Attorneys
For the Defendant: Mr. M. Vilakati
Attorney General’s Chambers
 See Issacs and Leveson: The Law of Collisions in South Africa (8the Edition, 2012 by H.B. Klopper) at page 64.